Court File and Parties

ORILLIA COURT FILE NO.: FC-22-223-00 DATE: 20240507 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Simcoe Muskoka Child, Youth and Family Services Applicant – and – M.J.C. and D.R.C. Respondents

Counsel: Heather Geertsma, for the Applicant David Miller, for the Respondent, M.J.C. Linda Paterson-Kelly for the Respondent, D.R.C.

HEARD: March 28, 2023

RULING ON MOTION FOR SUMMARY JUDGMENT

J.P.L. McDermot

Introduction

[1] This case involves placement of the parties’ daughter, S.C., who is nearly 19 months old.

[2] S.C. has been in temporary Society care for her entire life. According to the material filed by the Society, S.C. came into care when M.J.C., the Respondent Mother (the “mother”), gave birth to her at Soldiers’ Memorial Hospital in Orillia on October 10, 2022. D.R.C., the Respondent Father (the “father”), was also present at the hospital. Reports were received by the Applicant Society that the parents were unable to provide the care for S.C. that a newborn infant needed. There were allegations that the parents were belligerent, upsetting other patients, were unable to properly feed the child and were refusing to change the child’s diapers. The child was apprehended without a warrant on the day after her birth, and she was placed with the adoptive parents of the child’s half-sister in a kinship in care arrangement. S.C. has been in temporary Society care since then.

[3] The Society says that the evidence clearly shows that the Respondent Parents suffer from mental health issues and chronic homelessness. Although they have had housing since September, 2023, the Society workers say that they have been given access to that residence only twice and on one occasion, on January 19, 2024, the home was in poor condition with cat faeces in the kitchen cupboards. The Society says that the parents have had difficulty managing the child during their parenting time and that there has been little improvement. Numerous access visits have been missed. The parents refuse assistance from the Society worker, stating that they do not need help and can parent the child without assistance. The Society has brought this motion for summary judgment as a result, and the request by the Society is for extended Society care with access to the Respondents.

[4] The mother has filed an affidavit denying most of what the Society workers allege. She confirms that she does not think she needs parenting assistance but states that she is willing to cooperate if there is a supervision order. She and the father have submitted two plans, one using family in this area, and the second proposing a move with the child to British Columbia and again receiving assistance from family in that province. They both say that there are triable issues concerning the plans that they have submitted and concerning the evidence that the Society relies upon for its request for summary judgment.

[5] The Society has requested a finding that S.C. is in need of protection under s. 74(2)(b)(i) of the Child, Youth and Family Services Act (the “CYFSA”) (child likely to suffer physical harm because of caregiver’s failure to adequately care for, provide, supervise or to protect the child). Both counsel for the parents indicated during argument that a finding under this paragraph of the CYFSA could go on consent. The major issue in this motion for summary judgment is disposition.

Adjournment Request

[6] As of April 10, 2024, the child will have been in care for 18 months. Under s. 122(1) of the CYFSA, the court shall not make an order that would permit the child to be in interim Society care for more than 12 months with one possible six-month extension. On October 18, 2023, after the child had been in temporary care for more than one year, I addressed this issue in my adjournment endorsement, and extended the time for the child to be in care for a further six months. I did this on the basis that at the next court appearance, if the matter was not settled, the matter would be set down for a summary judgment motion during the February, 2024 child protection sittings, peremptory on all parties. As the matter did not settle, that is exactly what I endorsed on December 22, 2023.

[7] When the parties appeared in assignment court at the commencement of the February child protection sittings, it was apparent that no one was prepared to argue a summary judgment motion during the sittings. As noted in my endorsement of February 21, 2024, there were several outstanding issues. Ms. Paterson-Kelly had been unable to contact her client to have him sign his affidavit (apparently, he was in British Columbia visiting family). The Society had failed to address significant hearsay statements in the workers’ affidavits contrary to Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316. And the mother in this proceeding, had recently been charged with an assault against the father and the police records were not available for the motion.

[8] Because of the imminent expiry of the timelines, I adjourned this matter to myself on March 28, 2024. Again, this date was peremptory. However, when we attended, there was a further request for an adjournment by the two parents. The mother filed an affidavit that said that the charges were due to be soon withdrawn in favour of a peace bond with a revocable no-contact order. The parents said that they intended to revoke the no-contact order and resume cohabitation. They also said that they had a new plan to move to British Columbia where they would be assisted by the father’s parents and sister in British Columbia. They said that it would be unfair to not permit them the time to present this plan in detail to the court.

[9] This argument of the adjournment request considered the effect of s. 122 of the CYFSA which imposes a one-year time limit on any order that places a child under six into temporary care. Section 122(1) reads as follows:

(1) Subject to subsections (4) and (5), the court shall not make an order for interim society care under paragraph 2 of subsection 101 (1) that results in a child being in the care and custody of a society for a period exceeding,

(a) 12 months, if the child is younger than 6 on the day the court makes the order; or

(b) 24 months, if the child is 6 or older on the day the court makes the order.

[10] My concern was that the timelines under s. 122 of the CYFSA were soon going to expire. The child has been in care her entire life without any permanency and S.C. would have been in care for 18 months as of April 10, 2024.

[11] Mr. Miller for the mother argued that the timelines are inapplicable and that the court has discretion to extend them if necessary. Strictly speaking, he is correct. Section 122(1) imposes the timelines only to a final order under s. 101(1) placing the child in temporary Society care. Theoretically, the court could continue to adjourn the matter by way of temporary orders well beyond the 12-month period set out in s. 122(1) even if the child is in temporary Society care. If Mr. Miller is correct, when making interim orders, the court has no obligation under the s. 122 timelines to address child protection matters on a timely basis.

[12] However, the Court of Appeal has, on several occasions, suggested that the timelines are intended to discourage a child under six being placed in temporary Society care for more than a 12-month period and are applicable throughout the entire child protection proceeding, interim orders or not. In C.M. v. Waterloo Children’s Aid Society, 2015 ONCA 612, the court considered a child protection case involving two children under six. From the day that the child went into care to the date of a final order made in the Ontario Court of Justice, the child had been in temporary care (pursuant to interim orders) for 33 months. The court applied s. 122 to an 18-month delay in the Society amending its pleadings; in paragraph 31 the Court of Appeal stated that the delay pursuant to temporary orders made in the proceeding “was almost a year-and-a-half after the date of apprehension and already past the 12-month statutory limit for Society custody and care.” Later, again in reference to interim orders delaying the final resolution of the matter, the court stated that adherence to the timelines was imperative:

We echo the Superior Court appeal judge’s concerns. We go further and state that it is imperative that judges, court administrators, counsel (particularly counsel for Children’s Aid Societies) and assessors take responsibility for ensuring adherence to statutorily required timelines (emphasis added).

[13] Since then, the Court of Appeal has confirmed on a second occasion that, in the conduct of child protection matters, the s. 122 timelines are intended to ensure that the children’s needs for permanency are met on a timely basis. In Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682, the appeal was, in part respecting the motion judge’s refusal to accede to a request by the parents for a temporary “pause”, in that case suggested to be up to a year, to allow the parents to present a plan for the children’s care. That would have placed the children in temporary care for well more than the one-year time limit under s. 122(1).

[14] The Court of Appeal disagreed with the suggestion for a “pause” and noted that the best interests of the children are in part defined by the time limits in s. 122 of the CYFSA. In other words, the in adhering to the timelines, the court is, in part, meeting the best interests of the children in determining permanency for children in care within a reasonable time. Jamal J.A. stated, in dismissing the appeal on the issue of the “pause” [at para. 33 et sequent]:

[33] I do not accept this submission. Section 122(1)(a) of the CYFSA is clear that, subject to ss. 122(4) and (5), which address deemed and court-ordered extensions, “the court shall not make an order for interim society care” (emphasis added) that results in a child being in the care and custody of a society for more than 12 months, if the child is younger than six on the day the court makes the order. The 12-month time limit for an order under s. 122(1)(a) is plain on the face of the provision. The unfortunate practical reality that children do sometimes remain in interim society care for longer than this does not render the statutory time limit optional. Courts at all levels have stressed “the importance of reaching a speedy resolution of matters affecting children”: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 206; see also Children’s Aid Society of Oxford County v. W.T.C., 2014 ONCA 540, 46 R.F.L. (7th) 290, at para. 10; Children’s Aid Society of Toronto v. C.J.W., 2017 ONCJ 212, at para. 90.

[34] I would also reject the suggestion that the courts below took an “absolutist” approach to s. 122(1)(a) at the expense of the best interests of the children or the importance of maintaining FNIM connections. The time limits imposed by the statute must be presumed to reflect its objectives, including, especially, the promotion of the best interests of the children. Here, the trial judge considered the children’s best interests throughout and emphasized the matter was “long overdue for resolution.” The appeal judge similarly described the children as being “parked in limbo”. These considerations are firmly rooted in the children’s best interests. I see no basis to intervene.

[15] From all of this, I infer that, even concerning interim orders, the s. 122 timelines are to be applied in the administration of a child protection file to ensure determination of a matter for children in temporary care within a reasonable time. The timelines define that reasonable time. To hold otherwise would be to ignore that it is in the children’s best interests for timely resolution of child protection matters where children are in the “in between place” that constitutes temporary Society care. It is trite to state that, in child protection matters, a timely resolution is in the best interests of children and the Court of Appeal has confirmed that, not just once but twice, in applying the s. 122 timelines to temporary orders. That is notwithstanding the fact that a strict reading of the section confirms that it speaks to final orders under s. 101(1) of the CYFSA.

[16] Mr. Miller stated that these cases do not mean that the timelines should not be extended where it was in the best interests of children to do so. He cited Children's Aid Society of Toronto v. N.G., 2022 ONCJ 235, a decision of Justice Sherr of the Ontario Court of Justice. In that case, Justice Sherr was considering a second six-month extension to the timelines to allow a father about six weeks’ time to arrange to take the child into his care. He had found that it was in the children’s best interests that they be placed with the father subject to supervision, but also determined that the father needed some time to transition to the children into his care. Justice Sherr determined that, based upon the flexible approach advocated by the Court of Appeal in Catholic Children's Aid Society of Toronto v. N.J., 2017 ONSC 4884, that the court has jurisdiction to extend the timelines beyond the six-month extension under s. 122(5) where necessary to address the child’s best interests.

[17] That case is clearly distinguishable. In that case, there was a detailed plan to place the child with the father. Justice Sherr extended the timelines for six weeks to enable the father to prepare his home for the child and obtain daycare placement for the child. The plan was detailed and firm and was found to be in the best interests of the child in question. In the present case, however, the parents’ plan to move to British Columbia is not really a plan; it can be described as more of possibility. There is no detail to the plan. To implement the parents’ plan in this case, there would be a significant delay to allow the parents to amend their Plan of Care and provide particulars of the plan, to allow a home study to be completed by the British Columbia child protection authorities for the father’s sister (with whom the parents proposed to live according to the mother’s affidavit sworn March 28, 2024) and for the British Columbia authorities to determine that they would accept a transfer of the file to allow them to cooperate in executing the plan. There was no evidence as to the details of the plan or how much time was required to implement the plan.

[18] Mr. Miller and Ms. Paterson-Kelly both argued that this was late breaking news and only just came up during the father’s recent trip to British Columbia. They say that this is the reason that they needed additional time to place the plan before the court. This is untrue. The parents suggested this plan (among others) at a Family Group Decision Meeting on October 11, 2023. The Society rejected the plan because the father’s sister and brother-in-law had not been approved “previously” and nothing had been done to mitigate the earlier protection issues. This is not a new plan but was suggested unsuccessfully at least six months ago and could have easily been a part of the Respondents’ plans of care or detailed in their affidavits filed at this motion.

[19] For all of these reasons, it was in the children’s best interests to resolve this matter sooner rather than later because of the significant delays that have already occurred. There is no reason why the parents could not have provided particulars of the British Columbia plan in their affidavits or further explored that plan prior to the argument of this motion. I therefore dismissed the Respondents’ request for an adjournment and ruled that the motion would proceed to argument on March 28, 2024.

Disposition

[20] For the reasons set out below, there shall be an order for summary judgment as requested by the Society. The child shall therefore be placed in extended society care with supervised access to the parents on a monthly basis.

Analysis

[21] This is a summary judgment motion. The parents have acknowledged that S.C. is a child in need of protection. The only issue is disposition; the Society seeks an order that there is no genuine issue for trial as to whether the child should be placed in extended care as requested in the Society’s Plan of Care.

[22] The Society says that there is no need for a trial based upon the following uncontradicted factors affecting S.C.’s best interests:

(a) The parents’ unresolved and unmedicated mental health problems; (b) The parents’ housing insecurity; (c) Ongoing domestic violence between the parents; and (d) The parents’ inability to exercise consistent parenting time (access) to the child.

[23] The parents insist that a trial is necessary for an order for extended care. Described as the “most profound order that a court can make”, an order for extended care is a disposition that effectively removes most if not all parental rights concerning their child as well as permitting the Society to place the child for adoption and requires the “highest degree of caution”: see Catholic Children’s Aid Society of Hamilton v. M(M.A.) at para. 12. There must be no other alternative to such an order and, as this is a summary judgment motion, there can be no genuine triable issue as to whether there are reasonable alternatives to an extended care order.

[24] The parents say that they have several plans to ensure that the protection issues are addressed, either seeking assistance from family members in this area or in British Columbia. Mr. Miller and Ms. Paterson-Kelly both suggest that, based upon the duty of the Society to reunite parents with their children under the CYFSA, the plans constitute reasonable alternatives which deserve the judicial consideration that only a trial can offer.

[25] As stated, this is a motion for summary judgment under Rule 16 of the Family Law Rules. The rule provides as follows:

(a) The moving party must provide affidavit evidence that “sets out specific facts showing there is no genuine issue requiring a trial”: Rule 16(4); (b) The responding party must provide factual evidence showing a genuine issue for trial and not “mere allegations or denials”: Rule 16(4.1); (c) A party relying on hearsay evidence runs the risk of “conclusions unfavorable” to that party: Rule 16(5); (d) The court has the power to weigh evidence, evaluate credibility of a deponent or to draw any reasonable inference from the evidence: Rule 16(6.1); and (e) If there is an issue, the court may make an order for summary judgment on some issues, and to direct a focused trial or “mini-trial” respecting specific issues where a genuine issue has been raised on the evidence: Rule 16(6.2).

[26] The leading case on the issue of summary judgment is, of course, Hryniak v. Maudlin, 2014 SCC 7, [2014] S.C.J. No. 7. That case suggests that there are two stages to a summary judgment motion which are as follows:

(a) Firstly, the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1); (b) If, after that analysis, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers (weighing evidence; making credibility findings, etc.) to determine whether a trial is required.

[27] The issue of what is meant by “no genuine issue for trial” has been considered in a number of cases. Some cases refer to this test as being the same as the responding parties having “no chance of success”: see Children’s Aid Society of Oxford (County) v. J(J) at para. 8. Other cases have defined the test as being no realistic outcome other than that which is sought by the Applicant or alternatively the result sought by the moving party being a “foregone conclusion”: see Catholic Children’s Aid Society of Metropolitan Toronto v. O(L.M.) at para. 80 and Children’s Aid Society of the County of Lanark and Town of Smiths Falls v. S.M., [2010] W.D.F.L. 2361 (Ont. S.C.J.) at para. 21.

[28] Rule 16(4) requires that the responding party must provide an evidentiary record showing that there is a genuine issue for trial, something referred to in the case law as being putting his or her “best foot forward”: see Children’s Aid Society of Toronto v. E.L.L. (2000), 134 A.C.W.S. (3d) 263 (Ont. C.J.) and Rogers Cable TV v. 373041 Ontario Ltd., 1994 CarswellOnt 166 (Gen. Div.). However, r. 16(4) tends to take the focus off the fundamentals of a motion for summary judgment as set out in Kawartha-Haliburton Children’s Aid Society v. M.W, supra. Essentially, it is not only the responding party who must put his or her best foot forward; it is also the Applicant Society who must do so:

(a) Hryniak’s fairness principles for summary judgment must be applied, recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial the court must exercise caution and apply the objectives of the CYFSA including the best interests of the child. (b) The burden of proof is on the party moving for summary judgment. Although, r. 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial. As in criminal matters, the burden never changes. (c) The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. It is noted that this prohibition goes beyond rule 16(5), which provides only for an unfavourable conclusion where the party relies upon hearsay evidence.

[29] The issue of disposition is determined according to the child’s best interests as defined in s. 74 of the CYFSA. Section 74(3)(c) requires the court to consider certain criteria in determining best interests:

(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs, (ii) the child’s physical, mental and emotional level of development, (iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression, (iv) the child’s cultural and linguistic heritage, (v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family, (vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community, (vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity, (viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent, (ix) the effects on the child of delay in the disposition of the case, (x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and (xi) the degree of risk, if any, that justified the finding that the child is in need of protection.

[30] Although priority is given to a child’s indigenous status and the child’s views and preferences, those are not factors here. There are no real cultural issues concerning S.C. and she is too young to express views and preferences. The best interests criteria that are at play in this matter are those set out in s. 74(3)(c), subparagraph (i) (parents’ ability to meet the needs of the child), subparagraphs (v), (vi) and (x) (relationship and connection with the parents) and subparagraphs (vii) and (viii) (stability issues).

[31] I am going to address the issues raised by the Society and then also the plans that have been placed before the court by the Respondent Parents.

Mental Health Issues

[32] The Society says that there are unresolved mental health issues concerning the mother. In the affidavits signed by both Society workers, Krystal Horan and Rita Emo, they allege that the mother suffers from bipolar disorder and has refused to take her medication for that condition. On one occasion, on November 9, 2023, Ms. Emo attempted to talk about the mother’s mental health issues, specifically her bipolar disorder and she deposes that the mother became upset, stating that the medication was full of “crack/cocaine”.

[33] In her affidavit, the mother denies that she said this, stating that she does not even know “what that is.” Importantly, she deposes in her affidavit that she does not suffer from bipolar disorder:

I deny the allegation that there were issues regarding my mental health, again for which no specifics are given beyond a diagnosis and whether I was taking medication, and there is no expert evidence given regarding my mental health. My mental health was and is stable. I do not accept that I currently have bipolar disorder. The medication I used to take did not assist me, and had difficult side effects. I do not accept that I need to take any such medications to be able to parent Savannah or to be able to manage myself.

[34] This is a demonstrably false statement, by the mother’s own admissions in a Statement of Agreed Facts signed by her on April 28, 2022. On that date, about two years prior to the mother swearing her affidavit, the mother admitted as follows:

The mother has a bipolar disorder for which she is not receiving treatment. This impacts on the mother’s mood regulation. The mother has also disclosed having black outs from time to time.

[35] The statement in the mother’s affidavit regarding her mental health is a misleading and false statement. Approximately two years ago, the mother acknowledged having bipolar disorder and that she is not receiving treatment. Had this Statement of Agreed Facts not been provided to the court, the mother’s affidavit would have had the court believe that there was a triable issue as to whether she has bipolar disorder. The admission made by the mother in her Statement of Agreed Facts directly contradicts that. In light of the fact that the mother has raised conflicting facts in her affidavit, under Hryniak, the court must make, if it can, determinations as to credibility. That statement in the Statement of Agreed Facts puts the mother’s credibility in doubt, at least concerning her mental health disorder. She knows very well that she suffers from bipolar disorder and that she has been diagnosed with that condition. She knows as well that it was untreated in 2022 and remains untreated today. That was acknowledged by her to be a protection issue in 2022 and it remains one today.

[36] Further, the diagnosis of bipolar disorder was confirmed by Dr. Guller’s discharge diagnoses dated May 24, 2015. There is no medical evidence supplied by the parents to contradict this diagnosis.

[37] The mother has provided no evidence concerning her mental health issues other than her bald statement that she has none. She suggests that the Society offers no expert evidence of her mental health; however, the individual who has full access to her medical records, including her mental health records, is no one other than herself. This is especially so where the mother, as in the present case, has at times withdrawn her consents for disclosure and then reinstated them afterwards. If she is to put her best foot forward to meet the Society evidence of mental health issues including her own admission of such, she is in the best position to obtain and provide contrary evidence from the medical practitioners that have treated her. She has not.

[38] I must therefore assume that the mother has bi-polar disorder which remains untreated and unresolved at this time. She has in her Statement of Agreed Facts agreed that this was a factor in the protection issues resulting in her loss of care of S.C.’s stepsister in 2022. There is no evidence that she has addressed those problems since the signing of her Statement of Agreed Facts in April, 2022.

[39] I find that the Society’s concerns as to the mother’s mental health and her lack of treatment for her bipolar disorder are continuing and unaddressed. I find these to be protection issues which would affect her ability to care for S.C. or to provide a stable home for the child.

Housing Insecurity

[40] The Respondents have had housing insecurity issues for some time.

[41] Their transiency existed at the time of the birth of the child, and thereafter is outlined in paragraph 22 of Rita Emo’s affidavit sworn January 24, 2024. Suffice to say that to, as far as the Society knows, the parents had housing as follows:

(a) After S.C. was born, the parents moved to a rooming house in Orillia because of a conflict with their former roommates. (b) The roof caved in at this residence. The Society was unclear as to where the parents were residing until the early spring of 2023 when they moved in with the mother’s father and stepmother in Barrie. (c) Thereafter, the Respondents briefly moved into the Lighthouse Shelter in Orillia. Because of an altercation between the parents, they were banned from the Lighthouse Shelter on April 30, 2023. (d) The parents were unhoused after this event until moving in with an aunt in Gravenhurst. They were eventually asked to leave and were again unhoused, living in a tent.

[42] On August 9, 2023, the parents advised the Society that they had found housing in Barrie, being a basement apartment at 31 Charlbrook Avenue in Barrie. They remained there until the mother was charged with an assault on the father on February 18, 2024. Until then, the Society worker was only permitted into the home on two occasions. The parents were, at the time the motion was heard, living in separate residences, initially the mother initially living with a former roommate and the father in the Charlbrook Avenue apartment.

[43] The mother deposes that, once the charges are withdrawn, she will be allowed to sign a peace bond with a revocable no-contact order. Then, she expects that the parties will both revoke the no-contact order and reconcile. The parents plan to either seek the assistance of the mother’s family in Barrie or moving to British Columbia to obtain assistance from the father’s sister and family there.

[44] The longest period of time that the family has had stable housing is during the more than six months that they lived at the basement apartment at 31 Charlbook Avenue in Barrie. The housing issues are of long standing as confirmed by the Statement of Agreed Facts signed by the mother on August 20, 2022. In that Statement of Agreed Facts, she confirmed that the “mother has had difficulty securing permanent housing and has remained transient during the Society’s involvement.” According to the Statement, the Society was involved with the mother for approximately two years from when it began providing prenatal care in April, 2020 to the date of the Statement of Agreed Facts, which was in April, 2022; accordingly the mother agreed that she was unable to achieve housing stability for the entirety of that time period.

[45] The parents appeared to obtain housing that was stable for S.C. However, the latest incident resulted in the mother having to live in another residence with a former roommate. The father has also moved into another residence. Had S.C. been residing with the parties when this incident took place, she would have suffered from further housing instability as a result of the mother having to move out of the home and then the father doing so. She has been out of the home since February 8, 2024 and, assuming that the mother is correct in her assumption that the charges would be withdrawn on April 3, 2024, this has lasted nearly two months.

[46] In their responding affidavits, neither of the parents denies their instability or housing issues as set out in the Society affidavits. They both concentrate on the fact that they obtained an apartment and have lived there for the past six months. It appears that, for the mother, this is the first time since 2020 that she has had stable housing.

[47] However, the parties have not permitted the Society worker with any meaningful access to their apartment. The parents do not deny that the first time that the Society worker was permitted into their home was December 9, 2023, more than four months after they moved in. The second and final opportunity for the worker to see the home was on January 18, 2024, and at that time the worker found the conditions in the home to be concerning:

In reply to paragraph 38 of the mother’s Affidavit, in which the mother states the home is “clean and appropriate”, during my last home visit, on January 19, 2024, there was strong odor of dirty kitty litter and human body odor in the home. I was able to observe both the parents’ feet and they were both completely black like the black top of a road. During this visit the father was preparing food for the mother and when he opened the kitchen cabinet door, I commented that it looked like some acorns on the shelf, at which point the mother informed me it was, “cat shit”. The father grabbed it, threw it in the garbage and continued to make the mother her meal without washing his hands.

[48] I understand that the parents’ situation is not to be judged from a middle-class standard; the parents have financial and other challenges and the child’s best interests have to be determined from the perspective of those challenges. However, apart from the question of how cat faeces made their way into the kitchen cabinets, basic sanitation is an expectation that is not “elitist” in any manner. The incident in question is concerning, not just because the parents are expected to provide a clean and stable home for their child, but also to prepare food for this child in a safe manner. There was, for example, an allegation that the mother had taken a baby bottle out of the garbage to feed to S.C.; the mother denied having done this. But the father’s food preparation after handling the cat faeces is similar to the allegation of taking the bottle out of the garbage.

[49] The parents have now planned yet another move. In her affidavit sworn March 28, 2024 in support of her request for an adjournment, the mother deposes that:

My plan is that [S.C.] be returned to the care and custody of [D.R.C.] and me under a supervision order, and we are moving to British Columbia to reside with [D.R.C.]’s family. I also understand that [D.R.C.]’s sister [T.B.] and her husband [R.B.] are putting forward a plan of care herself for [S.C.]. I support this plan as well. I understand we would have the full support of 8 of [D.R.C.]’s family members in British Columbia. We will be able to reside with them and have their support for [S.C.]’s care.

[50] This plan appears to be both an acknowledgement that they cannot offer a viable plan for the child in their present residence, as well as contemplating a further move across the country to implement this plan.

[51] Finally, due to the assault charges against the mother, apparently neither party is now living at the residence at 31 Charlbrook Avenue in Barrie. The mother went to stay with a former roommate and family friend at 127 Mary Street in Barrie. Apparently, the father is now staying there and the mother has moved to another residence at 31 Vespra Street in Barrie. According to the contact report from the worker, the police thought that the father went to the mother’s residence to have her charged with breach of the no-contact order so that he could move in with the former roommate. The court has to ask where S.C. would have been living since February 18, 2024 were she living with the parties during this time.

[52] I find that there has been a history of housing instability and the recent assault charge has continued this instability. The plan that they have involves a further move to another province. I find that the Society has and continues to have legitimate concerns as to the Respondents’ housing instability and their ability to offer a stable and suitably clean home for S.C.

Domestic Violence

[53] On February 18, 2024, the mother was charged with an assault on the father. It was described as a pushing incident after an argument over a cell phone. S.C. was not present for the incident, but the mother was charged and she was made subject to a no-contact order. She had to move in with a former roommate of the parties (who was suggested at one point in one of the plans put forward by the parents to address the protection concerns of the Society).

[54] Later, there was evidence that the father attended at the residence of the person with whom the mother was living. The suggestion was that the father did this so that the mother would be removed from that residence and so that the father could move in with that individual.

[55] There was no police incident report available when this motion initially came up for argument during the February, 2024 child protection sittings. That was because the parents had refused to provide a consent to provide those incident reports to the Society worker. As a term of the adjournment from the February, 2024 sittings to the date this motion was argued, the parents did provide a consent to obtain the reports from the police. Part of the reason that the Society wanted the incident reports was because the CPIN notes of the incident indicated that there had been other occurrences between the parties requiring police attendance. However, those incident reports were still not in the hands of the Society at the time of argument of the motion and the Society indicated that it was prepared to proceed without those reports.

[56] However, the result of the lack of consent is that much of the evidence that the Society is forced to rely upon concerning domestic violence and police involvement is hearsay evidence, usually not permitted at trial. In this case, the evidence consists of records from the CPIN notes from the workers who have been involved with the file, confirmed by “hearsay” affidavits after the fact. However, those reports from the police as to the incidents is the best evidence available to the court to determine whether there are domestic violence concerns which affect the stability of this family. The court is left with either drawing an adverse inference from the failure to provide the consents for the police records on a timely basis or alternatively determining the reliability and necessity of using the hearsay evidence, being the CPIN records, proffered by the Society: see R. v. Khan, [1990] 2 S.C.R. 531 at 540 combined with the “hearsay” affidavits. The necessity arises from the parents’ refusal to provide the consents to obtain the reports. The reliability arises from the fact that the CPIN reports are a record of an incident that occurred that was prepared almost contemporaneously with the event in question and presumably pursuant to Society requirements for consistent record keeping and which have been confirmed by affidavits from the workers to address the hearsay issue.

[57] Moreover, there is evidence that this was not the first time that the mother was charged with an assault in a pushing incident, again involving the father. On April 30, 2023, the parents reported to the Society worker that they were removed from the Lighthouse homeless shelter in Orillia because of a similar incident where the mother was arrested as a result of another pushing incident. The assault charges did not proceed because the father, who was both the complainant and the only witness to the event, refused to provide a statement.

[58] There also appears to have been a previous revocable no-contact order between the parties which was waived by the parties in December, 2022. There is no evidence why this order was made.

[59] However, in both of the more recent incidents, the direct result was further housing instability for the parties. In April, 2023, the parties were removed from the Lighthouse Shelter as a result of the altercation that occurred and ended up living on the streets. In February, 2024, the same result occurred; the mother was forced to move in somewhere else, leaving the father in the parties’ apartment.

[60] The mother deposed in her affidavit in support of the adjournment that she expected the charges to be withdrawn. She advised that there would be a Peace Bond with a revocable no-contact provision. She expected that the father would revoke the no-contact order allowing the parties to both communicate and reconcile.

[61] However, the point is not whether or not the charges will be withdrawn. The court must ask what would have occurred had S.C. been living with the parents when this incident took place. The parents have consistently said that they were always willing and able to care for S.C. so this is a legitimate question. There was evidence that the father was not even willing to go to access visits without the mother and it is unknown whether he would have been able to parent the child alone in the home. Then the father tried to move in with someone else, and the mother was forced to go to another residence. Either way, there was housing instability from February 18, 2024 to the date of argument of the motion which would have clearly affected the child’s stability.

[62] Finally, there was information in the materials provided by the parents that the father had completed the PARS program (Partner Assault Response). The real issue is whether the mother should have been the one participating in the program. According to the Society worker, the mother denies that she had any anger issues that required addressing by counselling or otherwise. In light of the incidents being discussed, that does not show a great deal of insight into her own issues.

[63] I do not need a trial to satisfy me that the relationship between the parties is volatile, and the mother has had at least two outbursts that resulted in housing instability for these parties and police involvement. Based upon her admissions in the Statement of Agreed Facts noted above, the mother’s volatility may be related to her untreated mental health issues as previously mentioned. This is obviously an issue that affects the parties’ ability to parent the child and provide a stable home in the future.

Parenting Time (Access)

[64] An ongoing theme of the material provided by the parents is that they are able to parent S.C. without assistance from the Society. They prefer to seek out the assistance of family, either in Ontario or British Columbia. They say that they will comply with the terms of any supervision order, but they are clear in their materials that they don’t need such an order.

[65] That theme was prevalent in the evidence supplied by the parties concerning their access to the child. Since the child was apprehended, the Society offered access to the parents. Since November 22, 2022, the Society had agreed to access for the parents two times per week supervised. However, in December, 2022, when the parents signed a revocable consent to permit contact between themselves, the Society offered three visits per week and also offered clinically managed access to assist the parents with their parenting skills during their visits with S.C. According to Krystal Horan’s affidavit sworn August 18, 2023, that clinically managed access came to an end in March, 2023.

[66] According to the closing summary of Laurie McEwan-Bumstead dated March 27, 2023 the parents had difficulty focusing on S.C.’s needs:

As [S.C.] gets older, she requires more stimulation, parents struggle with this. Parents have learned to play on the floor with [S.C.], offering her toys and books. We talked about play as the way babies learn. They enjoy this time with [S.C.] but lose focus after about 10 minutes. They appear anxious to get back to their seats where they often have [S.C.] on their laps, facing the room, and talk with each other, or engage with their phones. FSW will encourage parents to focus on [S.C.].

Parents spend much of their visit on their phones. This is also the case when a Family Contact Worker supervises. After reminding them their parenting time is limited and the importance of interacting with [S.C.], parents play with her until they are again distracted by their phones. Attempts to get parents to put away their phones after having video calls with family, and taking pictures, are met with huffing, and puffing and acting as if it is an unreasonable request.

[67] A number of other concerns are set out in the workers’ affidavits. These include the failure to protect S.C. from falling off a couch, giving S.C. a small Lego piece to play with which constituted a choking hazard, and giving her a bottle that was too hot and would have burned S.C.’s mouth.

[68] The mother denies that these events even took place. In her affidavit, she says that she and the father do not concentrate on their phones and that they never put S.C. at risk by putting her on the couch without being able to prevent her from falling. She denies that she provided a bottle that was too hot for her or that she gave S.C. a small Lego piece to play with. Mr. Miller on her behalf says that these are conflicts on the evidence that must be addressed at a trial.

[69] I agree with Mr. Miller that it is difficult to resolve, without a hearing, conflicting allegations contained in affidavits filed by parties at a summary judgment motion. Apart from this, however, the mother’s affidavit discloses serious credibility issues as to her parenting capacity.

[70] Throughout, in her affidavit and in argument on the motion, the mother has taken the position that she and the father need no assistance as far as their parenting abilities go. She said, in para. 29 of her affidavit that “we are able to parent [S.C.] without assistance beyond our own significant support system, and we do not need the assistance of the Society.” This was reiterated a number of times by Mr. Miller during his submissions. It was also confirmed by the Society when they ended the clinically managed access in March, 2023 because “the parents have indicated they believe they have no need for any teaching or support and there is nothing they need to learn or want support with.”

[71] Essentially, the mother has taken the firm position that she does not need parenting help from the Society and that she and the father are perfectly capable of parenting S.C. without any assistance. She also does not deny that she refused the Society’s offer of clinically managed access. However, this is contrary to her statement in her affidavit that she and the father appreciate that “that there is always more to learn about parenting no matter how much you know” and that they both “love to learn about parenting.” The concern is not necessarily the inconsistency; it is more that it is unclear as to what assistance the parents would accept from the Society worker or, for that matter, from family members if there are parenting concerns as set out in the Society’s affidavits. If there are unresolved and continuing concerns as to parenting, the ability of the parents to accept direction to solve those problems is crucial and, other than their undertaking to comply with a supervision order, I do not find that they would willingly accept assistance from the Society.

[72] The mother deposed that she and the father had taken parenting classes. However, she offers no specificity as to the classes that she took. If she had taken classes on parenting, one would have thought that she would be in a position to say which courses the parents have taken and when she and the father took those parenting courses. Certainly, the Triple P parenting classes offer a certificate of completion to participants in that program and that was not included in either parent’s evidence.

[73] As well, apart from the parenting issues, the other concern is that the parents have not consistently exercised the parenting time that the Society offered. Initially, the Society offered three visits per week, two being regular supervised access and the third visit clinically managed access. The evidence of the Society worker is that the parents were inconsistent in exercising that access for various reasons and they missed numerous supervised access visits. According to the evidence provided by the Society workers and the schedule prepared by the worker and appended to her affidavit, the parents were missing numerous visits in 2023 and at the end of April, 2023, a month after the clinically managed access visits came to an end, the Society reduced the access visits to two times per week because the parents were missing numerous access visits.

[74] To put a number on this, the Society worker deposed that in 2023, the parents made it to about 45% of the access visits, either missing or cancelling the remaining visits. This is based upon the parents attending at about 50 of the 111 scheduled visits during 2023. It has gotten worse in 2024, perhaps because there is a no-contact order and the father does not want to visit S.C. without the mother being present. To the date of the swearing of Ms. Emo’s affidavit of February 24, 2024, the parents had attended 3 of 13 scheduled visits. Ms. Geertsma, in argument, calculated the percentage of visits attended by the parents in 2024 at 30% and parents’ counsel did not differ with this assessment.

[75] The mother says that she doubts that she and the father had missed that many visits. She says in her affidavit that, “in response to paragraphs 50 and 51, I disagree with the numbers here. I believe in 2023, we attended far more than 45% of the visits. I believe in 2024, we have attended most of the visits.”

[76] Again, as with the parenting courses, the mother offers no specificity as to the visits she actually attended. The calendar entries provided by the Society worker are specific and detailed evidence as to the attendance by the parents at the access visits. It is compelling evidence while the mother’s evidence is basically a statement of belief without supporting evidence. I find that the mother’s evidence as to attendance on access visits lacks credulity. Therefore, I find that the parents have missed most of their access visits with S.C. and they missed a greater percentage of visits in 2024 than in 2023. Things are worsening rather than improving for these parents and I do not need a trial to confirm that.

[77] The mother deposes that most of the visits were missed because of illness. Neither she nor the father gives any evidence as to what illnesses are preventing them from seeing their daughter on a regular basis.

[78] In any event, the parties may have been ill on numerous occasions, but when I asked what this would mean if the parents were caring for S.C. on a full-time basis, I was told that when they had the child in their care, illness would make no difference because they would have no choice but to continue parenting S.C. However, if the parents are to be believed that they are ill for most of the access visits, that is a concerning record. If the parents are sick most of the time, how can they adequately parent S.C. when in such poor health? I am concerned that these are just excuses and that S.C. is not, in fact, the priority of these parents. At one point, the worker spoke with the parents about this and asked if one of them was sick, whether the other parent could come for the access visit. The response was that both of them were actually sick and not just one, which seemed fabricated in my opinion.

[79] It is not as though the parents don’t know that it is important for them to consistently attend on their parenting time. According to Ms. Emo, the parents have told her on at least three occasions that they believe that they will have S.C. returned if they attend access visits consistently. Even though they are told that this was not the only concern, the parents stated several times that they believed that attending access visits consistently was the best route to have S.C. returned to their care and yet still did not consistently exercise parenting time.

[80] As well, when the father complains in his materials that he and the mother have never been given a chance to parent S.C., the Society responds by saying that they gave the parents plenty of chances to be parents to S.C. by offering three and then two visits per week. The parents were offered an opportunity to parent during access visits but missed the majority of those visits. The parents stated that they thought that these missed visits were crucial to the determination as to whether S.C. would be returned to their care and yet they continued to miss those visits. As stated by Zuker J. in Children’s Aid Society of Toronto v. G(R.), 2009 ONCJ 82 at para. 70, the issue is not the heartfelt intention of the parents, “but whether they have in fact changed and are now able to give the child the care that is in his or her best interests”. Again, I do not need a trial to determine that the parents have not improved as far as their consistency in exercising access goes. The situation has, in fact, worsened as the date for the summary judgment motion approached.

[81] I cannot find that the parents can consistently and competently parent their child if they cannot even make the visits on a consistent basis. Whatever the situation is as to their ability to parent, the inability of the parents to come to see their child for the limited time that is offered is an indicia of the ability and willingness to properly parent S.C.

Parents’ Plans of Care

[82] As stated, the parents do not believe that they need assistance from the Society to parent their child, S.C. They prefer to seek out the assistance of family and friends.

[83] They also feel that they can assume care of S.C. right now. In his affidavit, the father states that the parents never been allowed an opportunity to parent the child. Although they do not agree with the need for a supervision order, both of them say that they will adhere to the provisions of a supervision order.

[84] In a Family Group Decision Making meeting on October 11, 2023, the parents discussed their plans to assume care of S.C. They proposed a number of options at the meeting, which included assistance from their roommate, R.P., assistance from a great aunt (who lives on the east coast), assistance from the father’s sister in British Columbia (outlined in the discussion concerning the adjournment request) and assistance from the adoptive parents of S.C.’s stepsister. It is to be noted that the worker deposed that the father was not fully engaged in this meeting and had to leave the meeting with R.P. to cash a cheque.

[85] There were various reasons why the plans put forward by the mother were rejected. According to the worker, the plan concerning the great aunt was withdrawn by the Respondents. R.P. was deemed to be too close to the parties and it was felt that he would not act protectively if the child was at risk. The father’s relatives in B.C. had their own protection issues there according to the British Columbia authorities who deemed the home unsatisfactory for placement of the child and the parents.

[86] By the time the motion was heard, the parents were proposing the following alternate plans:

(a) As set out in both parents’ plans of care, S.C. would be immediately returned to their care with the assistance of the mother’s brother, sister and her stepfather and mother in Ontario. (b) At the hearing of the motion an adjournment was requested to present a “new” plan whereby the father’s sister and brother and law in British Columbia would provide a home for the Respondent parents and S.C. and would assist them there. (c) The parents say that they will comply with the terms of any supervision order although they say that a supervision order is unnecessary.

[87] The parents both emphasize that they love their child and that she is better off with them than with an adoptive parent. As stated by the father in his affidavit, “[S.C.] has a bond with her mother and I and we love her deeply. I respectfully submit that breaking this bond will be detrimental to [S.C.].”

[88] He says that S.C. is “entitled to the love and care of her parents and all of her extended family.”

[89] I will address the various components of these two plans.

Assistance from Mother’s Family in Simcoe Muskoka

[90] In her Plan of Care, the mother has suggested that the child be returned to her and the father. She says that she will be seeking assistance from her family here in Simcoe County, including her brother, her stepmother and father. She says she will also receive support from her sister and brother-in-law who live in Newfoundland.

[91] It is to be noted that this plan was not presented to the Society at Family Group Decision Making on October 11, 2023 and seems to have been only raised in the mother’s Plan of Care which was served on the Society on March 1, 2023. There is a little more detail in the mother’s affidavit. She says that her brother and her father and stepmother, all of whom live in Barrie, “could babysit, provide financial assistance, and provide emotional support” and that S.C. could live with the parents at their home on Charlbrook Avenue. The mother’s sister and brother-in-law live in Newfoundland and would provide “emotional support” only.

[92] It is notable that none of these individuals are proposed as being of assistance to the Respondents for parenting issues. The proposed help would be with childcare as well as emotional and financial assistance. This is in accordance with the position that the parents take, which is that they need no assistance whatsoever with their parenting skills and that S.C. should be returned to their care without restriction. It is clear that the assistance from the mother’s family here in Simcoe Muskoka is not in parenting S.C.

[93] However, according to the worker, the relationship that mother has with her parents is somewhat volatile. In her reply affidavit, the family social worker, Ms. Emo, states that as of March 6. 2024, the mother had cut off her family because they had tried to separate the parents from one another. The parents were only reconciled through R.P.

[94] As well, the parents attempted to live with the mother’s mother and stepfather when they were having housing issues in early spring, 2023. According to the affidavit of Krystle Horan sworn August 18, 2023, that broke down “shortly after” and the parents ended up at the Lighthouse Shelter in Orillia. As has also been pointed out in the Society’s materials, no one on the mother’s side of the family have proposed a plan to care for the child and this is probably no accident: the parents are consistent that they need no help in parenting S.C. from the Society and they are also not seeking parenting assistance from the mother’s family. All they are seeking is child care and emotional and financial assistance from the mother’s family.

[95] Based on this, I can only find that this plan can work if the Society has failed to prove that the parents need assistance with their ability to adequately parent S.C. In light of the parents’ housing issues, the mother’s mental health issues, the domestic violence issues and the inability of the parents to consistently exercise their parenting time with S.C., all of which is essentially uncontradicted by the parents’ evidence, the Society has proven that the Respondents require parenting assistance from either the Society or reliable family members approved by the Society. It is also uncontradicted by the evidence that this assistance would not be welcomed or accepted by the parents.

Assistance from Father’s Family in British Columbia

[96] As noted above, the parents asked for an adjournment to flesh out a plan whereby the parents would move to British Columbia to live there with the father’s sister and brother-in-law, T.B. and R.B. The plan is that the parents would move to British Columbia to live with them and that they would assist in parenting S.C.

[97] This was presented as a new plan which probably arose because the father recently visited family in British Columbia. However, it was not a new suggestion. In Ms. Horan’s affidavit sworn August 18, 2023, she stated that the parents had suggested this plan prior to the swearing of that affidavit:

The family plan in British Columbia is no longer being explored as the Society in British Columbia raised sufficient concerns that proceeding with a full assessment was not felt to be warranted by the Society at this time.

[98] The parents then revived that plan at the October 11, 2023 family planning meeting. Again, the Society reviewed the viability of the plan and again rejected it. In Ms. Emo’s affidavit sworn January 24, 2024, she confirmed:

The Society has assessed the kin plan previously with [T.B.] and [R.B.] and they were not approved at that time. Currently, [T.B.] and [R.B.] have not been able to provide the Society with any change in circumstances that would mitigate the original protection concerns which resulted in the [B.] family not being approved as kin caregivers.

[99] Since the affidavit was sworn by Ms. Emo on January 24, 2024, the father has filed a responding affidavit. That affidavit was sworn by the father on February 22, 2024, after he recently travelled to British Columbia to visit family, including, presumably, his sister. In fact, what is notable about that affidavit is that it does not speak of the plan of staying with and receiving assistance from the father’s sister. It also does not respond to the suggestion that there were protection issues concerning T.B. and R.B.’s home in British Columbia. The father’s affidavit could have responded to the protection concerns of the British Columbia authorities and the Society here in Simcoe Muskoka. It could have provided particulars of the plan to move to British Columbia. It did not, and from this I must presume that the plan has been explored twice and rejected twice for good reason. This proposal was made by the parents prior to August 18, 2023 and the parents did not see fit to provide particulars of it in their affidavits. I therefore do not find that this plan is a reasonable alternative to the Society’s claim for extended care.

Supervision Order

[100] The parents claim that they don’t need any assistance from the Society and that they can parent without the necessity of a supervision order. The mother states in her Plan of Care that the child could be placed with her unconditionally, under a deemed custody order or alternatively pursuant to a supervision order; it doesn’t matter which so long as S.C. comes to live with her and the father.

[101] There is a conflict on the evidence as to the parenting abilities of the Respondent parents. I have already spoken of the allegations of the family support worker and the access supervisors concerning the inability of the parties to safely parent a very young child. Those allegations are specifically denied by the mother.

[102] The mother and father both claim that they have never been given a chance by the Society to parent their child and demonstrate their parenting skills. However, they are largely responsible for this. Even if there was agreement by the Society and the Respondents as to their parenting skills, the parents have missed numerous access visits which have resulted in there being a lack of information or observation as to their parenting skills. It is also difficult for the court to make a finding that the parents are able to consistently parent their child in light of their inability to consistently attend on access visits. This year, in 2024, they have made it to less than one third of the visits being offered.

[103] The mother says in her affidavit that she has taken parenting courses. She has provided no particulars as to what courses she took or when she took them. She has provided no evidence by way of letter or certificate that she completed the courses. The father made the same statement, that he had taken a parenting course, but again, there are no particulars of that course. I have no real evidence that the parents can care for S.C. without assistance and the Society evidence certainly is clear that they cannot. It would be almost impossible for the court to decide that the child should move immediately from sporadic supervised access to care of the child. The statement made in Children’s Aid Society of Toronto v. R.H., 2016 ONCJ 181 at para. 140 is particularly applicable to the present case:

The mother has only had supervised access with the child since 2012. It would be irresponsible for a court to return the child to her care until she could demonstrate that she could adequately parent the child without supervision for extended periods. This would be a lengthy process. Even in the best-case scenario, the court could not place the child with the mother without first testing whether she could adequately parent him, first, on a fully unsupervised basis, second for full days, and third, for overnight visits. This process would need to take place for at least 9 months to a year for the court to effectively evaluate whether a return of the child was viable. There is a huge difference between managing a child in a structured setting for a short period of time and caring for a child on an extended basis. The time to attempt extended access in this manner has long passed as the statutory timelines in the Act have been exceeded.

[104] A temporary Society care order is not available because of the time that has elapsed and because of the s. 122 timelines. Because of the parenting concerns, if S.C. were to be placed with the parents, the court must, at the very least, make a supervision order to ensure the safety of the child in the Respondents’ care. The issue then becomes whether the parents would follow a supervision order as they have undertaken to do in their materials.

[105] There is, in this case, a history of non-cooperation by the parents with the Society workers. Consents for disclosure of information have been revoked and then reinstated. The mother is volatile and suffers from untreated bipolar disorder. The parents have refused reasonable access by the worker to their residence. The worker does not presently have a clear idea where the parents are even living; that information came as a result of the last contact that the worker had with the police. Until April of last year, the parents refused assistance through the clinically managed access program offered to them. They refused access to their residence on only two occasions in six months. Although the parents will speak with the Society worker, they do not go further than that. There is no history of cooperation with the Society which would normally be necessary to make a finding as to compliance with a supervision order.

[106] For these reasons, I do not believe that the parents will cooperate or comply with a supervision order in this matter or that a supervision order would be effective to ensure that the parents can safely parent S.C.

Conclusion

[107] Subparagraphs 73(3)(v) and (vi) of the CYFSA both speak of the importance of maintaining a child’s connection with his or her family and extended family. These best interests criteria are in accordance with the goals of the CYFSA as set out in s. 1 which state that the “least intrusive” course of action should be taken in addressing the best interests of children, and that any assistance to parents by a Society “should give support to the autonomy and integrity of the family unit”. The primary goal is, if possible, to return children to the care of their parents with whom the child was with at the time of Society intervention and to support them and the child as a family unit.

[108] Sometimes, that goal is impossible to maintain. It is only then that an order for extended Society care be ordered: see s. 101(3) of the CYFSA.

[109] The Society worker is very clear that one of the strengths of these parents is the fact that they love and desire to do their best for their child. The parents have asserted this in their respective affidavits and say that they will cooperate with the Society if ordered to do so. However, that is not, unfortunately, reflected in their actions. They are unable to maintain stable or suitable housing and do not consistently exercise their access visits. The altercations that have taken place between each other have resulted in further instability. An example is the most recent assault and the parents competing with one another to live with their former roommate which resulted in the father going to the mother’s residence to have her breach the non-contact order. Their actions seem childish or juvenile and do not reflect parents who are sufficiently mature in order to parent their infant child.

[110] As far as I can see, the safety issues that brought this child into care still exist today. Although S.C. is truly loved by the parents, that cannot override the need for stability and safety, and the need to address this child’s needs and care on a timely basis. The parents have made little progress in consistently exercising access. The mother’s bi-polar disorder remains untreated and unresolved. Although the parents have an apartment, at present neither of them are living there, and this is because of an altercation similar to others which have had consequences on the housing issues that have plagued this family.

[111] Because of all of these factors, I cannot conclude on the evidence proffered by the Society that there is any other order which is in the child’s best interests other than extended care to the Society so that the child can achieve permanency. No triable issue has been raised in the parents’ materials.

[112] There shall be an order for extended Society care pursuant to s. 101(1) of the CYFSA. It is to be noted that this does not prevent access to the child and the legislation allows for a status review if the child has not been placed for adoption and if things have changed. However, the touchstone for the determination of a remedy in this matter which would result in placement with the parents is improvement, and the evidence is clear that there has been none whatsoever.

Parenting Time / Access

[113] There is no longer any presumption against access to parents when an order for extended care is made. As set out in Children’s Aid Society of Toronto v. J.G., 2020 ONCA 416, the presumption that the parents had to overcome when crown wardship was ordered was repealed with the passage of the CYFSA in 2017. As well, the Court of Appeal confirmed that access was based upon a best interests test, not the old standard in the Child and Family Services Act of “meaningful and beneficial”.

[114] Very little evidence was provided by either the parents or the Society as to proposed access to the parents once an extended care order was made. Counsel took no position on access during argument, concentrating on whether an extended care order could be made.

[115] The Society requests that access to the parents be at the discretion of the Society. In J.S.R. v. The Children’s Aid Society of Ottawa, 2021 ONSC 630 (Div. Ct.), the court determined that a full discretionary order as to parenting time or access is an “error in law.” Essentially, where the court is to determine best interests of a child concerning access or parenting time, the court cannot delegate that task to the Applicant Society.

[116] What parenting time is in the best interests of the child? I firstly take into account that one of the strengths of the parents is their love for S.C. As well, the child is connected with them, knows them and easily goes to sit on the lap of one or another parent. It is clearly in S.C.’s best interests that this child has ongoing contact with the parents.

[117] What is most concerning is the sporadic nature of the access that the parents have exercised concerning S.C. They have clearly been inconsistent and do not attend even the two visits per week offered by the Society. The estimate for 2024 is that the parents have exercised access for three visits out of ten. I am not going to continue the regime of two visits per week presently in place because the parents cannot manage to exercise that access and that sets the child up for disappointment when the parents fail to attend on their access visits.

[118] Moreover, the purpose of access in an extended care situation must be kept in mind. The court in J.S.R., supra, cited Kukurin J. in Children's Aid Society of the Districts of Sudbury and Manitoulin v. C.H., 2018 ONCJ 453 (Ont. C.J.) at para. 24 who stated as follows:

The purpose of an access order after a child is ordered into extended society care is different than the purpose of an access order before an extended care order is made. The extended care order presumes that the child and the access seeker will not be re-united in one family. In fact, the permanency plan for such child is necessarily with someone else. So why have an access order? The main reason is because, for the child, the relationship with the access seeker is one that has been, and is, beneficial and meaningful...

[119] The combination of the parents’ inconsistent visits and the purposes of an access order when the child is in extended care reflect that the visits should be reduced substantially.

[120] There shall be an order that the child (the access holder) have access to the parents at least monthly at a time and place agreed to by the Society with the supervision of that access at the discretion of the Society.

Order

[121] There shall therefore be an order to go as follows:

(a) There shall be statutory findings as per paragraphs 2 and 3 of the Society’s Notice of Motion to found at Tab 8 of the Continuing Record; (b) The child was apprehended from the care of the parents at Soldiers Memorial Hospital in Orillia, ON. (c) On consent, the child is found to be in need of protection pursuant to s. 74(2)(b)(i) of the CYFSA. (d) The child shall be placed in the extended care of the Society pursuant to s. 101(1) of the CYFSA. (e) The parents shall have access to the child at a minimum monthly for at least two hours. The visits to take place at a location and at times acceptable to the Society and the need for and nature of supervision shall be at the discretion of the Society.

McDermot, J. Released: May 7, 2024